Citation Nr: 1003133
Decision Date: 01/21/10 Archive Date: 02/01/10
DOCKET NO. 97-16 850 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to service connection for left knee
osteoarthritis.
2. Entitlement to an increased initial rating for lumbar
paravertebral myositis (LPM), evaluated as 20 percent
disabling prior to October 25, 2004.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
Jennifer R. White, Associate Counsel
INTRODUCTION
The Veteran had active military service from March 1967 to
February 1969 and served in the United States Army National
Guard of Puerto Rico from August 1987 to February 2003,
during which he had active duty from January 1991 to July
1991 and, apparently, from January 2002 to October 2002.
These matters come to the Board of Veterans' Appeals (Board)
on appeal from rating decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in San Juan, the
Commonwealth of Puerto Rico. The Veteran's appeal was
subsequently transferred to the VA RO in Newark, New Jersey,
that currently has jurisdiction over his appeal.
During the pendency of his appeal, the Veteran has testified
during three personal hearings at the RO: in July 1997, July
1999, and in April 2005. In September 2003 he requested to
testify at both a RO hearing and a video conference hearing
with a Veterans Law Judge (a Board hearing) and, in March
2005 written statements, the Veteran said he wanted to
testify at a Board hearing at the RO, but then said he wanted
to testify at a hearing at the RO, that was conducted the
next month. In an October 2006 letter, the Board asked the
Veteran to clarify his hearing request and return the
enclosed form specifically indicating his hearing preference.
The Veteran returned the form signed, but without indicating
a hearing preference. He enclosed a lengthy written
statement that did not indicate he wished to testify during a
Board hearing. As such, the Board is of the opinion that all
due process requirements were met regarding the Veteran's
hearing preference.
In a January 2007 decision, the Board denied entitlement to
service connection for joint and bone pain as well as an
increased initial rating for the Veteran's LPM. The Board
additionally notes that the same decision remanded
adjudication of the Veteran's claim for an increased rating
for LPM from October 25, 2004 to the Agency of Orginal
Jurisdiction. The Veteran appealed the Board's decision to
the United States Court of Appeals for Veterans Claims
(Court). In a December 2008 decision, the Court remanded the
matters to the Board for action consistent with the Court's
orders. The Board notes that the Veteran's claim concerning
his left knee has been recharacterized above in order to
maintain consistency with the December 2008 Court decision
which was specific as to the issues on the title page.
FINDING OF FACT
1. The Veteran's left knee osteoarthritis more likely than
not is related to an event of active service during April
2002.
2. For the period prior to October 25, 2004, the objective
and probative medical evidence of record reflects that the
Veteran's service-connected LPM was manifested by flare ups
on motion, symptoms such as pain, weakness, stiffness, and
limited motion, including forward flexion limited to 45
degrees, extension to 13 degrees, and left/right rotation to
45 degrees, but not symptoms approximating severe lumbosacral
strain, severe limitation of motion, severe intervertebral
disc disease, or ankylosis, nor does he experience
incapacitating episodes totaling four to six weeks yearly.
CONCLUSION OF LAW
1. With resolution of reasonable doubt in the appellant's
favor, the left knee osteoarthritis was incurred in active
service during April 2002. 38 U.S.C.A. §§ 1110, 5107 (West
2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2009).
2. The schedular criteria for an initial rating in excess of
20 percent prior to October 25, 2004 for the Veteran's
service-connected LPM are not met. 38 U.S.C.A. §§ 1155, 5103-
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102,
4.27, 4.71a, DC 5299-5292 (2002), effective prior to
September 23, 2002; 38 C.F.R. § 3.102, 3,159, 4.71a, DC 5293
(2003), effective September 23, 2002; 68 Fed. Reg. 51,454,
51,456-57 (Aug. 27, 2003), 38 C.F.R. § 3.102, 3.159, 4.71a,
DC 5237 (2009), effective September 26, 2003.
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002)) redefined VA's duty to assist a claimant in the
development of a claim. VA regulations for the
implementation of the VCAA were codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009).
VCAA notice must be provided to a claimant before the initial
unfavorable decision on a claim for VA benefits by the agency
of original jurisdiction (in this case, the RO). Id.; see
also Pelegrini v. Principi, 18 Vet. App. 112 (2004).
However, the VCAA notice requirements may be satisfied if any
errors in the timing or content of such notice are not
prejudicial to the claimant. See Pelegrini, 18 Vet. App. at
121.
The requirements apply to all five elements of a service
connection claim: veteran status, existence of a disability,
a connection between the veteran's service and the
disability, degree of disability, and effective date of the
disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006). Such notice must be provided to a claimant before
the initial unfavorable decision on a claim for VA benefits
by the agency of original jurisdiction (in this case, the
RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112
(2004). However, insufficiency in the timing or content of
VCAA notice is harmless if the errors are not prejudicial to
the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed.
Cir. 2004) (VCAA notice errors are reviewed under a
prejudicial error rule).
In this case, in August 2001, September 2003, and August 2005
letters, the RO provided notice to the Veteran regarding what
information and evidence is needed to substantiate a claim
for an increased rating, as well as what information and
evidence must be submitted by the Veteran and what
information and evidence will be obtained by VA.
In Dingess, the Court held that in cases in which service
connection has been granted and an initial disability rating
and effective date have been assigned, the typical service
connection claim has been more than substantiated, it has
been proven, thereby rendering section 5103(a) notice no
longer required because the purpose that the notice is
intended to serve has been fulfilled. Dingess, 19 Vet. App.
at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i), 73 Fed. Reg.
23353-56 (April 30, 2008). Thus, because the notice that was
provided before service connection was granted was legally
sufficient, VA's duty to notify in this case has been
satisfied. See generally Turk v. Peake, 21 Vet. App. 565
(2008) (where a party appeals from an original assignment of
a disability rating, the claim is classified as an original
claim, rather than as one for an increased rating); see also
Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); Fenderson v.
West, 12 Vet. App. 119 (1999) (establishing that initial
appeals of a disability rating for a service-connected
disability fall under the category of "original claims");
Hart v. Mansfield, 21 Vet. App. 505 (2007).
The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
veteran. Specifically, the information and evidence that
have been associated with the claims file includes the
Veteran's service treatment records, and post service
treatment records and examination reports.
As discussed above, the VCAA provisions have been considered
and complied with. The Veteran was notified and aware of the
evidence needed to substantiate his claims, the avenues
through which he might obtain such evidence, and the
allocation of responsibilities between himself and VA in
obtaining such evidence. There is no indication that there
are additional relevant records to obtain and there is no
additional notice that should be provided. As such, there is
no indication that there is any prejudice to the Veteran by
the order of the events in this case. See Overton v.
Nicholson, 20 Vet. App. 427, 437 (2006); Pelegrini, 18 Vet.
App. 112; Bernard v. Brown, 4 Vet. App. 384 (1993).
Moreover, as the Board concludes below that the preponderance
of the evidence is against the claims, any question as to an
appropriate disability rating or effective date to be
assigned is rendered moot. Any error in the sequence of
events or content of the notice is not shown to have affected
the essential fairness of the adjudication or to cause injury
to the Veteran. Thus, any such error is harmless and does
not prohibit consideration of these matters on the merits.
See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see
also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998).
Concerning the Veteran's claim for service connection, the
Board finds that the RO has substantially satisfied the
duties to notify and assist, as required by the VCAA. To the
extent that there may be any deficiency of notice or
assistance, there is no prejudice to the Veteran in
proceeding with this issue given the fully favorable nature
of the Board's decision.
II. Analysis
Service Connection Claim
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. § 3.303 (2009). Evidence of continuity of
symptomatology from the time of service until the present is
required where the chronicity of a condition manifested
during service either has not been established or might
reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations
also provide that service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disability was incurred in service. 38 C.F.R. § 3.303(d).
In order to prevail on the issue of service connection there
must be medical evidence of a current disability; medical
evidence, or in certain circumstances, lay evidence of in-
service occurrence or aggravation of a disease or injury; and
medical evidence of a nexus between an in-service injury or
disease and the current disability. See Hickson v. West, 12
Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App.
341, 346 (1999).
Moreover, where a veteran served continuously for ninety (90)
days or more during a period of war, or during peacetime
service after December 31, 1946, and arthritis becomes
manifest to a degree of 10 percent within one year from date
of termination of such service, such disease shall be
presumed to have been incurred in service, even though there
is no evidence of such disease during the period of service.
This presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002);
38 C.F.R. §§ 3.307, 3.309 (2009).
Unless specifically provided otherwise in the statute, the
effective date of an award based on an original claim for
compensation benefits shall be the date of receipt of the
claim or the date entitlement arose, whichever is later. 38
U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2009).
The effective date of an award of disability compensation
shall be the day following separation from service or the
date entitlement arose if the claim is received within one
year of separation, otherwise the date of claim or the date
entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)
(West 2002); 38 C.F.R. § 3.400(b)(2) (2009).
The Board has reviewed all the evidence in the Veteran's
claims file. Although the Board has an obligation to provide
adequate reasons and bases supporting this decision, there is
no requirement that the evidence submitted by the Veteran or
obtained on the behalf of the Veteran be discussed in detail.
Rather, the Board's analysis below will focus specifically on
what evidence is needed to substantiate the claim and what
the evidence in the claims file shows, or fails to show, with
respect to the claim. See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.
App. 122, 128-30 (2000).
The Veteran, through his representative, submitted a recent
opinion from a physician who specializes in orthopedics
indicating that the Veteran's left knee osteoarthritis is the
result of an April 23, 2002 in-service accident during which
the Veteran fell down stairs. The physician references the
Veteran's service treatment records indicating he obtained
medical treatment for his injury on that date as well as six
days later. The physician additionally notes that there is
no evidence of an injury or diagnosis concerning the
Veteran's left knee which pre-existed this date.
A December 2003 VA x-ray record indicates that the Veteran
was diagnosed with mild degenerative joint disease of the
left knee and mild left knee joint effusion.
The Board additionally notes that an October 2004 VA
examination indicated the Veteran had left knee
osteoarthritis; although the opinion of that examiner was
that the osteoarthritis was due to a work related injury at a
Plant Nursery. There is no indication of why the examiner
thought that the Veteran had a work related injury as there
was no record of such in the Veteran's claims file.
The Veteran has additionally submitted a January 2009 letter
from his former employer, indicating that the Veteran did not
file for any work related injuries while he worked there
during 2003.
To summarize, the evidence is in balance that the Veteran's
left knee arthritis results from an April 2002 in-service
injury. As such, resolving reasonable doubt in his favor,
service connection for arthritis of the left knee is
warranted.
Increased Rating Claim
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) and are intended to represent the average
impairment of earning capacity resulting from disability.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009).
Disabilities must be reviewed in relation to their history.
38 C.F.R. § 4.1.
Other applicable, general policy considerations are:
interpreting reports of examination in light of the whole
recorded history, reconciling the various reports into a
consistent picture so that the current rating may accurately
reflect the elements of disability, 38 C.F.R. § 4.2 (2008);
resolving any reasonable doubt regarding the degree of
disability in favor of the claimant, 38 C.F.R. § 4.3 (2009);
where there is a question as to which of two evaluations
apply, assigning a higher of the two where the disability
picture more nearly approximates the criteria for the next
higher rating, 38 C.F.R. § 4.7 (2009); and, evaluating
functional impairment on the basis of lack of usefulness, and
the effects of the disabilities upon the person's ordinary
activity, 38 C.F.R. § 4.10 (2009). See Schafrath v.
Derwinski, 1 Vet. App. 589 (1991).
In general, the degree of impairment resulting from a
disability is a factual determination and generally the
Board's primary focus in such cases is upon the current
severity of the disability. Francisco v. Brown, 7 Vet. App.
55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402
(1994). However, in Fenderson v. West, 12 Vet. App. 119
(1999), it was held that the rule from Francisco does not
apply where the claimant has expressed dissatisfaction with
the assignment of an initial rating following an initial
award of service connection for that disability. Rather, at
the time of an initial rating, separate ratings can be
assigned for separate periods of time based on the facts
found - a practice known as 'staged' ratings. See also Hart
v. Mansfield, 21 Vet. App. 505 (2007).
In evaluating disabilities of the musculoskeletal system,
additional rating factors include functional loss due to pain
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. 38 C.F.R. §
4.40 (2009). Inquiry must also be made as to weakened
movement, excess fatigability, incoordination, and reduction
of normal excursion of movements, including pain on movement.
38 C.F.R. § 4.45 (2009) The intent of the schedule is to
recognize painful motion with joint or pathology as
productive of disability and to recognize actually painful,
unstable, or malaligned joints, due to healed injury, as
entitled to at least the minimum compensable rating for the
joint. 38 C.F.R. § 4.59 (2009).
The Board recognizes that the Court, in DeLuca v. Brown, 8
Vet. App. 202 (1995) held that, where evaluation is based on
limitation of motion, the question of whether pain and
functional loss are additionally disabling must be
considered. 38 C.F.R. §§ 4.40, 4.45. The provisions
contemplate inquiry into whether there is crepitation,
limitation of motion, weakness, excess fatigability,
incoordination, and/or impaired ability to execute skilled
movement smoothly, and pain on movement, swelling, deformity,
or atrophy of disuse. Instability of station, disturbance of
locomotion, and interference with sitting, standing, and
weight-bearing are also related considerations. Id. Within
this context, a finding of functional loss due to pain must
be supported by adequate pathology and evidenced by the
visible behavior of the claimant. Johnston v. Brown, 10 Vet.
App. 80, 85 (1997).
The Board notes, however, that the Court has held that
section 4.40 does not require a separate rating for pain but
rather provides guidance for determining ratings under other
diagnostic codes assessing musculoskeletal function. See
Spurgeon v. Brown, 10 Vet. App. 194 (1997).
Except as otherwise provided in the Rating Schedule, all
disabilities, including those arising from a single disease
entity, are to be rated separately, unless the conditions
constitute the same disability or the same manifestation. 38
C.F.R. § 4.14 (2009); see Esteban v. Brown, 6 Vet. App. 259
(1994). The critical inquiry in making such a determination
is whether any of the symptomatology is duplicative or
overlapping; the appellant is entitled to a combined rating
where the symptomatology is distinct and separate. Esteban
v. Brown, 6 Vet. App. at 262.
During the pendency of the Veteran's claim and appeal, the
rating criteria for evaluating intervertebral disc syndrome
were amended. See 38 C.F.R. § 4.71a, DC 5293 (2005),
effective September 23, 2002. See 67 Fed. Reg. 54,345-49
(Aug. 22, 2002). In 2003, further amendments were made for
evaluating disabilities of the spine. See 68 Fed. Reg.
51,454-58 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, DCs
5235 to 5243 (2006)). An omission was then corrected by
reinserting two missing notes. See 69 Fed. Reg. 32,449 (June
10, 2004). The latter amendment and subsequent correction
were made effective from September 26, 2003.
Where a law or regulation (particularly those pertaining to
the Rating Schedule) changes after a claim has been filed,
but before the administrative and/or appeal process has been
concluded, both the old and new versions must be considered.
See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000
(Apr. 10, 2000). The effective date rule established by 38
U.S.C.A. § 5110(g) (West 2002), however, prohibits the
application of any liberalizing rule to a claim prior to the
effective date of such law or regulation. The Veteran does
get the benefit of having both the old regulation and the new
regulation considered for the period before and after the
change was made. See Rhodan v. West, 12 Vet. App. 55 (1998)
(VA may not apply revised schedular criteria to a claim prior
to the effective date of the pertinent amended regulations).
Accordingly, the Board will review the disability rating
under the old and new criteria. The RO evaluated the
Veteran's claim under the old regulations in making its
rating decisions dated in November 1996 and August 2000. The
May 1997 SOC evaluated the Veteran's claim using the old
regulations. In January 2005, the RO issued an SSOC that
evaluated the Veteran's claim using the new regulations
effective from September 26, 2003. The Veteran was afforded
an opportunity to comment on the RO's action. Accordingly,
there is no prejudice to the Veteran in our proceeding under
Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993).
Under 38 C.F.R. § 4.71a, DC 5021 (2009), myositis will be
rated on limitation of the affected parts, as degenerative
arthritis. Under Diagnostic Code 5003, degenerative arthritis
(hypertrophic or osteoarthritis), established by X- ray
findings, is rated on the basis of the limitation of motion
under the appropriate diagnostic code for the specific joint
or joints involved. 38 C.F.R. § 4.71a, DC 5003 (2009).
The Board notes that the RO rated the Veteran's service-
connected back disability under DC 5292 that evaluated
limitation of motion of the spine and assigned a 20 percent
evaluation. Under the old criteria, under DC 5292,
limitation of motion in the lumbar spine was assigned a 40
percent rating when severe, and a 20 percent rating when
moderate. 38 C.F.R. § 4.71a, DC 5292 (2002), effective prior
to September 26, 2003.
Normal range of motion of the cervical spine is flexion-
extension from 0 to 45 degrees, lateral flexion from 0 to 45
degrees and rotation from 0 to 80 degrees. 38 C.F.R. §4.71a,
Plate V (2009).
Normal range of motion of the thoracolumbar spine is flexion-
extension from 0 to 90 degrees and 0 to 30 degrees; lateral
flexion from 0 to 30 degrees and rotation from 0 to 30
degrees. Id.
Under the old regulations, effective prior to September 2003,
under DC 5295, a 20 percent rating was warranted for
lumbosacral strain where there was muscle spasm on extreme
forward bending and unilateral loss of lateral spine motion
in a standing position. 38 C.F.R. § 4.71a, DC 5295 (2002),
effective prior to September 26, 2003. A 40 percent
evaluation required severe lumbosacral strain manifested by
listing of the whole spine to the opposite side, a positive
Goldthwaite's sign, marked limitation of forward bending in a
standing position, loss of lateral motion with osteoarthritic
changes, or narrowing or irregularity of the joint space, or
some of the above with abnormal mobility on forced motion.
Id.
Under the old regulations for DC 5293, in effect before
September 23, 2002, a 20 percent evaluation was warranted for
intervertebral disc syndrome if the disability was moderate
with recurring attacks. 38 C.F.R. § 4.71a, DC 5293 (2002),
effective prior to September 23, 2002. A 40 percent
evaluation was assigned if it was severe with recurring
attacks with intermittent relief. Id. An evaluation of 60
percent was warranted when the disability was pronounced,
with persistent symptoms compatible with sciatic neuropathy
with characteristic pain and demonstrable muscle spasm,
absent ankle jerk, or other neurological findings appropriate
to the site of the diseased disc, with little intermittent
relief. Id.
Under the current rating criteria, that became effective on
September 26, 2003, a general rating formula was instituted
for evaluating diseases and injuries of the spine. See 68
Fed. Reg. 51,454-51,458 (Aug. 27, 2003); 69 Fed. Reg. 32,449,
32,450) (June 10, 2004) (codified at 38 C.F.R. § 4.71a, DCs
5235 to 5343 (2005)). Under the revised criteria, lumbosacral
or cervical strain is evaluated under DC 5237.
Under the current regulations, a 100 percent evaluation is
appropriate for unfavorable ankylosis of the entire spine; a
50 percent evaluation is appropriate for unfavorable
ankylosis of the entire thoracolumbar spine; a 40 percent
evaluation for favorable ankylosis of the entire
thoracolumbar spine or forward flexion of the thoracolumbar
spine of 30 degrees or less. Id. A 20 percent evaluation is
appropriate where there is forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; or, the combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or, muscle
spasm or guarding severe enough to result in an abnormal gait
or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis. Id. These evaluations are
for application with or without symptoms such as pain
(whether or not it radiates), stiffness, or aching in the
area of the spine affected by residuals of injury or disease.
Id. (This clearly implies that the factors for consideration
under the holding in DeLuca v. Brown are now contemplated in
the rating assigned under the general rating formula.)
Any associated objective neurologic abnormalities, including,
but not limited to, bowel or bladder impairment, are
separately evaluated under an appropriate diagnostic code.
Id., Note (1). However, there is no showing that the Veteran
objectively manifested neurologic symptoms as a consequence
of his service-connected lumbar spine disorder prior to
October 25, 2004. Nor is there medical evidence of record to
reflect that he had forward flexion of the thoracolumbar
spine to 30 degrees or less or favorable ankylosis of the
entire thoracolumbar spine to warrant a 40 percent evaluation
under the regulations currently in effect. Ankylosis, whether
favorable or unfavorable, involves fixation of the spine.
Id. at 51,457, Note (5). Ankylosis has been defined as
immobility and consolidation of a joint due to disease,
injury, or surgical procedure. See Lewis v. Derwinski, 3
Vet. App. 259 (1992); Dorland's Illustrated Medical
Dictionary 86 (28th ed. 1994).
Under the old regulations, effective prior to September 26,
2003, DC 5289 provides that a 40 percent rating will be
assigned for ankylosis of the lumbar spine at a favorable
angle, and a 50 percent rating assigned for ankylosis at an
unfavorable angle. 38 C.F.R. § 4.71a, DC 5289 (2002).
Under the revised regulations, intervertebral disc syndrome
is evaluated (preoperatively or postoperatively) either on
the total duration of incapacitating episodes over the past
12 months, or by combining under section 4.25 separate
evaluations of its chronic orthopedic and neurologic
manifestations along with evaluations for all other
disabilities, whichever method results in the higher
evaluation. However, the total medical evidence of record is
entirely negative for any reference to a current diagnosis of
intervertebral disc syndrome. These evaluations are for
application with or without symptoms such as pain (whether or
not it radiates), stiffness, or aching in the area of the
spine affected by residuals of injury or disease. Id. See
DeLuca v. Brown, supra.
The Board has reviewed all the evidence in the Veteran's
claims file. Although the Board has an obligation to provide
adequate reasons and bases supporting this decision, there is
no requirement that the evidence submitted by the Veteran or
obtained on his behalf be discussed in detail. Rather, the
Board's analysis below will focus specifically on what
evidence is needed to substantiate the claim and what the
evidence in the claims file shows, or fails to show, with
respect to the claim. See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.
App. 122, 128-30 (2000).
Service connection for LPM was granted by the RO in a
November 1996 rating decision that awarded a 10 percent
disability rating under DC 5299-5292. The RO reached that
determination, in large measure, upon review of National
Guard service medical records that showed that while on
inactive duty for training in January 1996, the Veteran fell
and injured his back. He complained of back pain in February
1996 and, in March 1996, was diagnosed with low back strain.
Post service, an October 1996 VA orthopedic examination
report reflects the Veteran's complaints of low back pain,
with forward bending that worsened on bending forward. He
described cramps in both calves and swelling. On
examination, there were no postural abnormalities of the back
and no fixed deformities. There was evidence of mild
lumbosacral paravertebral muscle spasm. Range of motion of
the lumbar spine was forward flexion to 80 degrees, backward
extension to 25 degrees, right and left lateral flexion to 35
degrees, right rotation to 35 degrees, and left rotation to
30 degrees. There was objective evidence of pain on motion
on forward flexion and backward extension of the lumbar
spine. There was no muscle atrophy of the legs. The Veteran
had a negative straight leg raising, bilaterally with normal
muscle strength. The diagnosis was lumbar paravertebral
myositis.
A February 1997 VA radiology report of a magnetic resonance
image (MRI) of the Veteran's cervical spine includes an
impression of degenerative changes of the cervical spine,
suspected cervical muscle spasm and posterior right
paracentral disk protrusion at C6-C6 level.
A January 1999 private radiology report of an x-ray of the
Veteran's lumbar spine reflects mild spondylosis and rotation
of the spine to the right and a need to rule out muscle
spasm.
VA outpatient records indicate that the Veteran was seen in
March 1997 with complaints of low back pain. He was observed
to be ambulating normally. His lumbosacral spine was tender
with spasms. Straight leg raising was to 90 degrees and
there was no neural deficit.
During his July 1997 personal hearing, the Veteran indicated
he was currently under therapy at the VA outpatient clinic.
VA medical records, dated from August 1997 to September 1999,
reflect the Veteran's treatment for low back pain that
included physical therapy.
During his July 1999 personal hearing at the RO, the
Veteran's representative argued that the Veteran's service-
connected back disability warranted a 50 percent evaluation,
with a separate evaluation for back pain and limitation of
motion. The Veteran complained of back pain that made him
unable to sit up straight or recline in the back of a seat.
His back disability was treated with physical therapy and
prescribed medications.
In July 1999, the Veteran underwent VA orthopedic
examination. According to the examination report, the Veteran
complained of constant sharp low back pain and stiffness,
with occasional radiation of pain up towards the neck. He
also complained of occasional left lower extremity numbness
when resting and numbness at the feet of both lower
extremities when running. He denied fecal or urinary
incontinence. His treatment included taking Naprosyn and
physical therapy. During flare-ups, he was able to function
and work; standing, sitting, bending precipitated pain, and
head, medication and physical therapy alleviated it. He used
a lumbosacral corset. The Veteran worked as a penal guard,
standing up and walking around. He was unable to sit
frequently that affected his work due to increased low back
pain.
On examination, range of motion of the lumbar spine was trunk
flexion to 45 degrees, extension to 13 degrees, right and
left lateral bending to 17 degrees; and right and left
rotation to 45 degrees, with painful motion at 45 degrees.
There was tenderness to palpation at the L5 level of
paravertebral muscles bilaterally, with no spasms and no
postural deformity or postural atrophies or atrophies in the
upper and lower extremities muscles. Strength was
essentially normal. There was a negative straight leg
raising test, negative Lasegue, Spurling, and Patrick tests.
Results of the February 1997 MRI were noted. The diagnoses
were cervical and lumbar myositis and degenerative joint
disease of the cervical spine.
VA outpatient records dated in March 2000 reflect the
Veteran's complaints of back pain. A physical therapy
progress note reflects full range of motion in the trunk that
was painful in last degrees. There was pain to deep
palpation in the iliolumbar area and mild to moderate muscle
spasm.
In a July 2000 rating decision, the RO awarded a 20 percent
rating for the Veteran's service-connected low back
disability, under DC 5292.
An August 2000 private CT report of a scan of the Veteran's
lumbosacral spine showed a small left paracentral herniated
nucleus pulposus (HNP) at L-4-L-5.
In a September 2000 private record, Dr. A.E. noted no
objective or subjective changes in the Veteran's clinical
findings since his last visit. The assessment was
symptomatic L4-5 lumbar myositis. A September 2000 VA record
indicates that the Veteran still had low back pain.
In a December 2000 signed statement, J.C., M.D., said that
the Veteran had a history of HNP at L4-5 and was unable to
return to work.
According to a December 2000 medical assessment from the U.S.
Postal Service, the Veteran was diagnosed with chronic lumbar
myositis and a herniated disc. His condition was described
as permanent.
A July 2001 VA treatment record indicates that the Veteran
was seen for an exacerbation of chronic LPM with complaints
of persistent radiculopathy to the left lower extremity. It
was noted that he ambulated without assistance.
An August 2001 VA form indicates that the Veteran had been
using a back brace. An additional August 2001 VA treatment
record indicates that the Veteran had chronic sharp pain of
the low back at 8 out of 10. A letter from the Veteran dated
August 2001 indicates that he felt his back condition had
worsened.
The Veteran received physical therapy for his back at the VA
Medical Center beginning in October 2001. The Veteran
indicated that his pain was constant at 8 out of 10. The
Veteran's tactile deep sensation was impaired; his range of
motion in the four extremities was intact except painful in
his terminal shoulder flexion and trunk flexion; his muscle
strength was 5 out of 5 in all extremities; normal
coordination; and spasm of the paravertebral muscles. The
Veteran's standing and sitting were noted as normal but some
days were limited due to pain.
A November 2001 VA treatment note indicated that the
Veteran's range of motion was intact with no gross motor or
sensory deficits.
An October 2002 VA form indicates that the Veteran had
received a replacement back brace. An October 2002 VA
treatment note indicates that the Veteran's back pain was
chronic, radiating and oppressive and was an 8 out of 10. An
additional October 2002 treatment note indicates that the
Veteran's range of motion was intact and muscle tone was
intact with no gross motor or sensory deficits.
A February 2003 private medical record from the Ashtabula
County Medical Center indicates that the Veteran's back was
not tender to palpitation and his peripheral pulses were
intact. Neurologically, cranial nerves two through twelve
were grossly intact; no focal deficits; deep tendon reflexes
were full and equal; strength was 5 out of 5 an equal in all
four extremities; cerebellar function was intact and the
Veteran's gait was steady. The Veteran was admitted for
problems with his stomach.
A December 2003 VA treatment note indicates that the
Veteran's range of motion was intact; muscle tone was
adequate and there were no gross motor or sensory deficits.
Upon review of the probative medical evidence of record, the
Board has determined that an initial rating in excess of the
currently assigned 20 percent evaluation is not warranted for
the period prior to October 25, 2004.
After reviewing the new criteria and regulations found at 68
Fed. Reg. 51,454, the Board finds that the new rating
criteria are less favorable than the old regulations at 38
C.F.R. § 4.71a (2009).
The collective evidence of record indicates that although the
Veteran wore a lumbar corset or back brace, he ambulated
without assistance. Flexion of the lumbar spine was to 80
degrees (in October 1996), to 45 degrees (at the July 1999 VA
examination), and full (in the March 2000 VA medical record)
and combined limitation of motion was greater than 120
degrees when there was pain at flexion of 45 degrees (at the
July 1999 VA examination). See DeLuca v. Brown, 8 Vet. App.
at 204-7). The October 1999 VA examination also reflects
that the Veteran had no spinal deformity, and only mild
spondylosis was noted in the January 1999 private x-ray
report.
Also, no scoliosis, reversed lordosis, or abnormal kyphosis
has ever been manifested. Thus, not only would the Veteran
not be entitled to a 40 percent or higher rating under the
new criteria (because ankylosis, or forward flexion limited
to 30 degrees or less is never shown to have been
manifested), he would not even be entitled to the 20 percent
rating he now carries. Thus, rating the Veteran's
lumbosacral strain under new DC 5237 and the new "General
Rating Formula for Diseases and Injuries of the Spine" is
clearly less favorable than rating his disability under the
old regulations at 38 C.F.R. § 4.71a (2002). VAOGCPREC 3-
2000.
In this case then, the Veteran's claim is to be evaluated
under the regulations in effect prior to September 26, 2003.
Lumbosacral strain was evaluated as 20 percent disabling when
there was a disability picture consistent with: muscle spasm
on extreme forward bending, a loss of lateral spine motion,
unilateral, in the standing position. Lumbosacral strain
that was severe was assigned a 40 percent rating. Severe
strain contemplated listing of the whole spine to the
opposite side, a positive Goldthwaite's sign, a marked
limitation of forward bending in standing position, a loss of
lateral motion with osteoarthritic changes, or a narrowing or
irregularity of joint space, or some of the above with
abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC
5295 (2002). A 40 percent rating was also available for
severe limitation of lumbar motion under DC 5292 (2002).
However, even though it is facially easier to obtain a 40
percent rating under the criteria in effect prior to
September 26, 2003, than it would if evaluated under the new
criteria, the preponderance of the evidence still is against
an initial rating higher than 20 percent for a lumbosacral
strain disability.
This is because severe limitation of motion is not shown by
the objective medical evidence of record. Also, none of the
criteria enumerated at DC 5295 as representative of a severe
lumbosacral strain disability are shown, either.
With regard to establishing loss of function due to pain, it
is necessary that complaints be supported by adequate
pathology and be evidenced by the visible behavior of the
claimant. 38 C.F.R. § 4.40. The Board finds that the effects
of pain reasonably shown to be due to the Veteran's service-
connected LPM are contemplated in the currently assigned 20
percent rating. There is no indication that pain, due to
disability of the lumbar spine, causes functional loss
greater than that contemplated by the 20 percent evaluation
now assigned. 38 C.F.R. § 4.40, 4.45; DeLuca v. Brown. The
Board additionally notes in this regard that the Veteran was
activated for a Southeast Asia deployment from January 2002
until October 2002. Although pre-deployment and post-
deployment physicals noted complaints of back pain, there is
no record of the Veteran receiving treatment for his back
during this period; although he did receive treatment for a
knee condition as indicated. In this regard, the Board
additionally notes that medical records indicate the Veteran
was deemed deployable after a thorough medical examination,
with the only concern being his pacemaker. The Board finds
that the Veteran's ability to complete a physically taxing
deployment to the Middle East for several months to be strong
evidence of his ability to maintain his activities of daily
living and a lack of functional loss.
Furthermore, as set forth above, the evidence on file does
not reflect disability or functional impairment to the extent
to warrant a rating in excess of 20 percent under the old or
current rating criteria for intervertebral disc syndrome.
While the July 1999 VA examination report describes the
Veteran's complaints of constant sharp pain, severe
disability was not diagnosed and is, thus, consistent with
current Board evaluation. Further, while the July 2001 VA
outpatient record notes that he was seen for an exacerbation
of his LPM with complaints of persistent radiculopathy to the
left lower extremity, nothing in this record described the
Veteran as having severe disability.
The Board concludes that the objective medical evidence of
record preponderates against a finding that the Veteran's
service-connected LPM disability warrants a rating in excess
of 20 percent for the period prior to October 25, 2004. The
Board does not find that the evidence is so evenly balanced
that there should be doubt as to any material issue regarding
the matter of a rating in excess of 20 percent for the
service-connected lumbosacral strain. The preponderance of
the evidence is clearly against the claim. 38 U.S.C.A. §
5107.
The Board has also considered whether the Veteran's
disability presents an exceptional or unusual disability
picture as to render impractical the application of the
regular schedular standards such that referral to the
appropriate officials for consideration of extra-schedular
ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2007);
Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this
case there are no exceptional or unusual factors with regard
to the Veteran's back condition. The threshold factor for
extraschedular consideration is a finding that the evidence
before VA presents such an exceptional disability picture
that the available schedular evaluations for that service-
connected disability are inadequate. See Fisher v. Principi,
4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply
unless there are 'exceptional or unusual' factors which
render application of the schedule impractical."). Here, the
rating criteria reasonably describe the Veteran's disability
level and symptomatology and provides for additional or more
severe symptoms than currently shown by the evidence; thus,
his disability picture is contemplated by the rating
schedule, and the assigned schedular evaluation is,
therefore, adequate. See Thun v. Peake, 22 Vet. App. 111,
115 (2008). Consequently, referral for extraschedular
consideration is not warranted.
In reaching the conclusion above the Board has considered the
applicability of the benefit of the doubt doctrine. However,
as the preponderance of the evidence is against the Veteran's
claim, that doctrine is not applicable in the instant appeal.
See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274
F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1
Vet. App. 49, 55-57 (1990).
ORDER
Entitlement to service connection for left knee
osteoarthritis is granted.
An initial rating in excess of 20 percent for LPM, for the
period prior to October 25, 2004, is denied.
_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs